Gifts and Inheritances
How are they treated in family law?
In Ontario, the Family Law Act excludes certain gifts and inheritances received from third parties in calculating the spouse’s net family property. Net family property is the value of a spouse’s property, after deductions such as debts and liabilities at the time of separation, after deducting the value of assets brought into the marriage, other than the matrimonial home. The courts will calculate and compare the value of each spouse’s net family property in order to determine whether an equalization payment needs to be made. Generally, a spouse should receive half of the overall net family property in addition to gifts and inheritances.
When will gifts and inheritances be excluded from net family property?
Gifts and inheritances will be excluded from a spouse’s net family property if they were received from a third person after the date of the marriage. However, gifts received from the spouse are part of net family property. Gifts and inheritances received before the date of the marriage may be subject to deduction but will not be simply excluded from the calculation and therefore any growth in their value will be subject to sharing. This should be contrasted with gifts from third parties where any increase in the gift’s value is not shared. In addition, the donor must have expressly intended to give the gift or inheritance to the spouse alone, rather than to the family as a whole.
When won’t gifts and inheritances be excluded from net family property?
Gifts and inheritances will not be excluded from net family property if they have become intermingled with other family assets, such as the matrimonial home or family money. For example, if a spouse purchased property with gift money, that spouse would have to show that the property was bought exclusively with gift money. This could be particularly difficult if the money was withdrawn from the family’s joint account. If the spouse cannot prove that the property was bought exclusively by gift money, the new property will not be excluded from the spouse’s net family property. The onus to prove the gift is upon the person making the claim of having received the gift. Furthermore, gifts and inheritances may not be excluded from the spouse’s net family property if the other spouse can show that they had a common intention to share the benefit of the gift or inheritances such as through the common use of property originally purchased with gift or inheritance money. Finally, interest or income derived from a gift or inheritance during the time of the marriage will only be excluded from the net family property if the donor expressly stated that it was to be excluded in a document of gift. Such a document could be a Will or a simple written statement of gift stating this intent. If a court finds that a gift or inheritance does not belong exclusively to one spouse then that gift or inheritance or a part of its value will be included in the spouse’s net family property. However, if the gift or inheritance is not shareable, then if it is sold or transferred into another asset, then that asset belongs to the one spouse alone. Also, any proceeds of sale of such excluded property or traced property should also qualify as excluded property. For legal advice on your specific situation, speak with a lawyer.
